supreme crt stilp v. kane

8/20/2019 Supreme Crt Stilp v. Kane

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IN THE SUPREME COURT OF PENNSYLVANIA

GENE STILP, CITIZEN, :

PRO SE, :

PETITIONER, :

:

v. : No.

:

KATHLEEN KANE :

PENNSYLVANIA :

ATTORNEY GENERAL :

:

BRUCE BEEMER :

FIRST DEPUTY :

ATTORNEY GENERAL, :

:

RESPONDENTS :

___________________________________________________________________________________

PETITION FOR REVIEW

(APPLICATION FOR WRITS OF MANDAMUS PURSUANT

TO THIS COURT'S KING'S BENCH POWERS)

I. INTRODUCTION

For the last year the citizens of Pennsylvania have observed the deterioration Attorney GeneralKathleen Kane and the Office of Attorney General under the direction of Attorney General Kathleen

Kane. From the facts stated below a picture can be drawn that shows that Attorney General KathleenKane's personal legal problems and personal conflicts have led to a series of critical criminal felony

and misdemeanor charges against Kathleen Kane that include, perjury, false swearing, abuse of office,official suppression, and contempt of court. The factual picture also includes a series of Pennsylvania

Supreme Court Disciplinary Board complaints that have led the Supreme Court of Pennsylvania to

suspend Kathleen Kane's Pennsylvania law license because of the breach of the Rules of ProfessionalConduct for attorneys in the Commonwealth of Pennsylvania.

Observations of the commonwealth taxpayers' of the functioning of Kathleen Kane as Attorney General

are that Kane's personal legal problems have greatly overshadowed the proper functioning of the Officeof Attorney General and those who have the constitutional oversight of the functioning of the Office of


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Attorney General are now attempting to remove Kathleen Kane as attorney general for "reasonable

cause" under Article VI, Section 7 of the Constitution.

Since Kathleen Kane's legal suspension, on September 21, 2015, the Office of Attorney Generallegal functioning has been assumed for the most part by the First Deputy Attorney General and a

battery of three Executive Deputy Attorneys General under him. Some legal tasks had apparently been delegated by Kane.

The purpose of this case is to ask the Pennsylvania Supreme Court if assumption of the theConstitutional authority of the Attorney General and the duties of the Attorney General under the

Commonwealth Attorneys Act by the First Deputy Attorney General and the Executive DeputyAttorneys General is legal when there is no vacancy in the position of Attorney General and no

definitive delegation of authority has occurred for many of the duties of the Attorney General aslisted in the Commonwealth Attorneys Act.

Furthermore, the purpose of this case is also to give the staff of the Office of Attorney General the proper guidelines in the present unprecedented set of facts where an attorney general with a

suspended law license cannot function as an attorney general in any legal capacity, and the Officeof Attorney General staff has not effectively been delegated the legal authority, before the

effective suspension of the law license of the Attorney General, for many of the duties that arelisted as the duties of the Attorney General in the Commonwealth Attorneys Act.

II. STATEMENT OF JURISDICTION

This petition for review is properly filed with this Honorable Court pursuant to 42 Pa. C.S. §

502 (vesting supreme court with powers of the Court of King's Bench) and Pa. R.A.P. 1551(b)

(Supreme Court "to hear and decide original jurisdiction petitions for review in accordance with

law").

1 This Court's jurisdiction of the Court of King's Bench is embodied in statute.

The Supreme Court shall have and exercise the powers vested in it by the Constitutionof Pennsylvania, including the power generally to minister justice to all persons and to

exercise the powers of the court, as fully and amply, to all intents and purposes, as the justices of the Court of King's Bench, Common Pleas and Exchequer, at Westminster.

or any of them, could or might do on May 22, 1722.

42 Pa. C.S.A. § 502; see also Pa. Constr. art. V, § 2 ("The Supreme Court shall have jurisdiction as shall be provided by law.")

2 Petitioner has no other forum within which to seek final redress for these grievances

as averred in the Petition for Review accompanying this application.

3 This Court has jurisdiction and is the only venue wherein the controversy outlined


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against Kathleen Kane from August 11, 2015 to November 3, 2015 as more and more of Kane's

behavior was revealed. There is no administrative action that can be undertaken to resolve the legal

delegation situation.

7 Mr. Stilp was also the successful complainant in the Federal Third Circuit

District Court and the Third Circuit Court of Appeals in 2010 against the Pennsylvania State

Ethics Commission involving the Pennsylvania State Ethics Commission violations of

citizens' First Amendment rights of Free Speech.

IV. STATEMENT OF MATERIAL FACTS

8. The present Attorney General of Pennsylvania is Kathleen Kane.

9.

Kathleen Kane was elected in November of 2012 and became Attorney General in

January of 2013.

10. The Sections of the Pennsylvania Constitution that refer to the Attorney General are

Article IV, Sections 4.1, 5, 6 and 7 for this Petition. These are Exhibit A.

11. Certain sections of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L.

950, No. 164. are also applicable to this case. This is Exhibit B.

12. Kathleen Kane has been charged with numerous crimes.

13. The Montgomery County District Attorney charged Kathleen Kane with perjury, false

swearing, abuse of office, official, suppression, and contempt of court on August 6, 2015. That

official charge sheet is attached as Exhibit C.

14. On August 25, 2015, the Disciplinary Board of the Pennsylvania Supreme Court

filed a Petition to suspend the law license of Kathleen Kane.

15. On September 21, 2015, the Pennsylvania Supreme Court issued an Order suspending the

law license of Attorney General Kathleen Kane as of October 21, 2015. That Order is Exhibit

D.

16. On October 1, 2015, the Montgomery County District Attorney filed new charges


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against Kathleen Kane. That charging document is Exhibit E.

17. On September 25, 2015 Kathleen Kane issued two letters delegating authority over some

functions (wire tapping and grand jury duty) of the Attorney General to individuals in the

OAG. These are exhibit F.

18. On October 22, 2015, First Deputy Attorney General and the three Executive Deputy Attorneys

General sent Kathleen Kane a Memo describing the legal functions of the OAG while Kane was

suspended from the practice of law. This is exhibit G.

19. On October 26, 2015, the Pennsylvania Senate set up a special “Senate Address

Committee” to ascertain the ability of the Senate and Governor to implement the language of

Article VI, Section 7 of the Pennsylvania Constitution.

20. On November 9, 2015 that Senate committee help its first hearing with three

district attorneys.

21. On November 17, 2015, that Senate committee held its second hearing presenting

Pennsylvania constitutional and ethics experts.

22.On November 18, 2015 the Senate Address Committee heard testimony from the First

Deputy Attorney General and the three Executive Deputy Attorneys General. The URL for that

hearing is http://senateaddress.pasen.gov/ and audio transcript of that hearing is Exhibit H.

23. In the testimony the panelists described the functioning of the OAG to the senators. First Deputy

Attorney General Bruce Beemer went over the October 22, 2015 Letter to Kane which described the

breakdown of possible legal duties as of October 22, 2015.

24. During time mark 1:00 of the hearing First Deputy Beemer noted at the beginning

that in response to the four attorneys letter of October 22, 2015, no document had come from

Kathleen Kane at any time that gave the overall breakdown of the duties or a clear line of

demarcation for the legal duties in the Office of Attorney General after Kane's suspension. The

only duty letters noted were the September 25, 2015 letters from Kane delegating wire tap and


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grand jury duties.

25. As of November 23, 2015 there is no vacancy in the position of Attorney General.

V. ARGUMENT

26. This is a case of first impression for the Supreme Court. This is an area of the

Commonwealth Attorneys Act which the Supreme Court has not had the opportunity to clarify

for the citizens of the Commonwealth. Section 202 of the Act, “Vacancy in office” does not

define vacancy as having anything to do with the suspension of an attorney general's law license

and the impact such a suspension has on the capacity of the attorney general to complete the

duties described in the Section 204 of the Commonwealth.

27. The sections of the Pennsylvania Constitution that deals with the Attorney General

are not helpful either. No section defines vacancy as not being able to fulfill the legal duties

assigned to the attorney general because of a legal license suspension.

28. Section 202 of the Commonwealth Attorneys Act does not designate the First

Deputy Attorney General to assume the duties of the elected Attorney General when that

Attorney General is incapacitated to practice law because of a suspension of a law license.

29. Section 202 only says” “Whenever there shall be a vacancy in the position of

Attorney General , the first deputy shall exercise the powers and perform the duties of the

Attorney General until the vacancy is filled.”

30. In the present case the First Deputy Attorney General and the Executive Deputy

Attorneys General have conferred upon themselves the non-delegated duties of the Attorney

General without the benefit of statutory or Constitutional direction. While it is good public

service to go the extra mile and operate by the seat of the pants, it leaves the Office of Attorney

General completely open to the question of the legal source of the authority by which they are

functioning for many of the Attorney General's personal duties outlined in the Commonwealth

Attorneys Act. This has lead to concerns by the First Deputy Attorney at the hearing at time

mark 107:00 of the transcript that defendants may use the delegation of authority as defensive

motions in legal cases.


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31. The First Deputy Attorney General and the Executive Deputy Attorneys General

have stated that they had sought the guidance of the Disciplinary Board by letter but did not

receive a reply.


did not file a case on this matter with either the Commonwealth Court or the Supreme Court

asking either court to furnish the legal framework for the legal authority on how to proceed in

this situation of first impression. First Deputy Attorney General said at the November 18,

2105 Senate hearing at time mark 97:00 of the hearing that he had searched nationally for a

comparative situation and could find none. The Attorney General, Kathleen Kane while not

being able to practice law and not being able to direct any legal action in the OAG did not ask

the courts for direction either. Kane would have had to file through a private attorney after the

suspension because Kane would not have been able to direct the OAG attorneys to file such a

case. Kane has taken no such private action. In a letter dated August 26, 2105 this Petitioner

had asked First Deputy Attorney General Beemer to file a case before the Commonwealth

Court seeking their help when no direction on the delegation of duties was available from

Kane. This letter is Exhibit I.

33. Petitioner is therefore left to file this Petition and hopefully certain parties will respond

with legal solutions, and amicus briefs from constitutional experts may enlighten the path to be

followed in this case of first impression.

34. Section 204 lists the legal areas where the Attorney General must be engaged.

Section 204 (a) (1) has the Attorney General giving legal advice to the Governor. Section

204 (a) (3) has the Attorney General defending the constitutionality of statutes. Section 204

(a) (4) has the Attorney General rendering a legal opinion related to appropriations. Section

204 (b) has the Attorney General reviewing the rules and regulations of the Commonwealth

agencies. Under this section the Attorney General can appeal decisions of various agencies

to Commonwealth Court. Section 204 (c) has the Attorney General representing the

Commonwealth and its agencies in actions brought against the Commonwealth, and may

intervene in charitable bequests and trusts, anti trust laws, collection of all debts or taxes and

settlement of defined cases. Section 204 (d) has the Attorney general administering the

Consumer Affairs programs. Section 204 (e) refers to the limitations on the Attorney

General on the settlement of claims. Section 204 (f) sets out the Attorney General's duties in


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regard to leases, contracts and bonds.

35. No where in Section 204 does the language state the Office of Attorney

General. The language clearly states the Attorney General has these duties personally under

this Legal Advice and Civil Matters section.

36. An example that was brought forward by Execute Deputy Attorney General Mulle

at time mark 29:00 minutes of the November 18, 2105 hearing was where General Obligation

Bonds of the Commonwealth would require an attorney general's approval and the OAG does

not know how they will deal with that.

37. Section 205 lays out the Attorney Generals duties for criminal prosecutions.

38. Under Section 205 (a) states the Attorney General shall have the power to prosecute

in any county criminal court the following cases: (1) criminal charges against State officials or

employees … (2) criminal charges against corrupt organizations, (3) help the counties in

investigations and with resources... (4) petitioning the court to supersede a county prosecution...

(5) accepting a criminal case from a president judge... (6) criminal referral from a

Commonwealth agency... (7) indictments returned by an investigating grand jury by the

Attorney General... (8) State medicaid Fraud Control Unit criminal charges... .

39. Under 205 (b) refers to the Attorney General's concurrent jurisdiction to prosecute.

205 (c) refers to criminal appeals by the Attorney General.

40. Under 205 (d) the Attorney General has the powers when prosecuting to employ

special deputies and confer powers on them.

41. Under Section 206 refers specifically to the Attorney General and investigating

grand juries and investigations.

42. Section 207 lists the Attorney General's membership in the Board of Pardons and

other membership posts in state government and when a deputy can be designated to serve in

certain posts.

43. Through out sections 204 to 207 the “Office of the Attorney General” is not

mentioned as the appropriate place where the authority lies and who can exercise this legal


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authority. Also various sections refer to the personal “he” or “his” when referring to the

Attorney General's duties under the sections. See sections 204 (a) (1), 204 (a) (4), 204 (b), 204

c, 204 (f), 205 (a) (5), 205 (a) (6), 205 (d), 206 (a), 207, and 208.

44. These references to “he” and “his” refer to the person of the attorney general and not

the Office of Attorney General.

45. In the present case, that person is the elected Attorney General Kathleen Kane, who

by reason of legal suspension cannot participate in any of the legal duties under these sections

of the Commonwealth Attorneys Act.

46. Although Kathleen Kane under the pressure of the Disciplinary Rule 217 apparently

designated certain attorneys in the OAG for wiretap and grand jury duties, the bulk of the legal

duties of the Attorney General remain legally undelegated by any document.


who have assumed control of the overall legal function of the Attorney General have to point to

exactly where all there assumed delegated legal authority derives to satisfy this Court.

48. Kathleen Kane has to show where legal authority was delegated and to who when

Kane was suspended. Could the lack of exercising the delegation of legal authority by Kane

could be construed as a dereliction of duty and a violation of Rule 217 of the Disciplinary Code

and add to the reasonable cause argument for Kane's removal under the Article VI, Section 7, a

constitutional removal process for an attorney general?

VI. RELIEF SOUGHT

WHEREFORE, Petitioner respectfully requests this Honorable Court to issue process as follows:

A WRIT OF MANDAMUS to Kathleen Kane to produce each and every document by which she has

delegated any legal authority to anyone in the Office of Attorney General showing the person,

the time period, the function, the relation of that legal function to the duties of the attorney

general as defined in the Commonwealth Attorneys Act from Kane's date of assuming office

until the effective date of Kane's suspension of the law license, and during the period allowed

under Rule 217 of the Disciplinary Rules for attorneys to resolve matters before ending legal


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duties under the rule.

A WRIT OF MANDAMUS directing First Deputy Attorney General Bruce Beemer to show exactly

which duties he has assumed since the September 21, 2015 suspension of Kathleen Kane's law

license. The information should include each and every document by which authority was

delegated to him by Kathleen Kane at any time during Kane's legally active tenure as Attorney

General and thereafter, and any document that shows a delegation of authority by him to any

other person in the Office of Attorney General, especially the three Executive Deputy Attorneys

General now under attorney Beemer's direction, before and after September 21, 2015. The

information should include a listing for each of the duties that are listed in the duties of the

Attorney General in the Commonwealth Attorneys Act and by what authority these duties were

assumed by the First Deputy Attorney General and the three Executive Attorneys General.

A WRIT OF MANDAMUS directing the three Executive Deputy Attorneys General to provide

exactly which duties they have assumed since the September 21, 2015 suspension of Kathleen

Kane's law license. The information should include each and every document by which authority

was delegated to them by Kathleen Kane at any time during Kane's legally active tenure as

Attorney General and any document that shows a delegation of authority to them by Kane after

her suspension, and, and delegation of authority to them by the First Deputy Attorney General

subsequent to Kane's suspension. The information should include a listing for each of their

duties that are listed in the duties of the Attorney General in the Commonwealth Attorneys Act

and by what authority these duties were assumed by them individually.

AN ORDER form the Supreme Court clarifying the fact that a vacancy in the position of Attorney

General is not defined by the loss of legal abilities because of the suspension of the law license

of the elected Attorney General.

AN ORDER from the Pennsylvania Supreme Court defining the process for the transference of legal

duties within the Office of Attorney General when the Attorney General becomes legallyincapacitated by the suspension of that attorney's law license and that attorney general has not

delegated certain legal duties under the Commonwealth Attorneys Act.

AN ORDER from the Supreme Court defining the non-transference of legal duties by an Attorney

General under legal suspension during the time appointed to accomplish that task under the

Disciplinary Rules of Section 217 of the Disciplinary Code as a violation of the Disciplinary


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VERIFICATION

I, Gene Stilp. aver that the statements in the foregoing petition for review are true and

correct to the best of my knowledge or information and belief. I make this verification subject

to 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.

Gene Stilp, citizen„ pro se


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PRO SE, :

PETITIONER, ::

v. : No.

:

KATHLEEN KANE :

PENNSYLVANIA :

ATTORNEY GENERAL :

:

BRUCE BEEMER :

FIRST DEPUTY :

ATTORNEY GENERAL, :

:RESPONDENTS :

NOTICE TO PLEAD

To Respondents: KATHLEEN KANE AND BRUCE BEEMER

You are hereby notified pursuant to Pa. R.A.P. 3309(b) to file a written response to the enclosed

APPLICATION FOR LEAVE TO FILE ORIGINAL PROCESS PURSUANT TO PENNSYLVANIA RULE

OF APPELLATE PROCEDURE 3307 within fourteen (14) days from service hereof or a judgment may be

entered against you.

______________________________

Date: November 23, 2015 Gene Stilp, citizen, pro se


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PRO SE, :

PETITIONER, ::

v. : No.

:

KATHLEEN KANE :

PENNSYLVANIA :

ATTORNEY GENERAL :

:

BRUCE BEEMER :

FIRST DEPUTY :

ATTORNEY GENERAL, :

:RESPONDENTS :

CERTIFICATION OF SERVICE

I hereby certify that I am this day serving the foregoing document upon the persons and in the manner

indicated below which services satisfies the requirements of Pa. R.A.P. 121:

Service by hand delivery:

Kathleen Kane

16th Floor

Strawberry SquareHarrisburg, PA 17120

First Deputy Attorney General

Bruce Beemer

16th

Floor

Strawberry Square

Harrisburg, PA 17120

Date: November 23, 2015

_____________________________

Gene Stilp

1550 Fishing Creek Valley RoadHarrisburg, PA 17112

717-829-5600

supreme crt stilp v. kane

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